Anthony Michael Pisano v State of Alaska

In the Court of Appeals of the State of Alaska
Anthony Michael Pisano, )
) Court of Appeals No. A-13089
Appellant, )
v. ) Order
)
State of Alaska, )
)
Appellee. ) Date of Order: May 24, 2018
)
Trial Court Case # 3AN-17-07343CR
[Before: Mannheimer, Chief Judge, Allard, and Wollenberg, Judges.]
Anthony Pisano is charged with three counts of first-degree murder in
connection with the shooting deaths of three men in September 2017. Pisano is also
charged with alternative counts of second-degree murder for these homicides and one
count of third-degree assault for recklessly placing a fourth person, Michael Dupree, in
fear of imminent serious physical injury. The superior court has held several bail
hearings to consider Pisano’s pretrial release, and Pisano now appeals the most recent
bail order issued by the superior court on January 24, 2018.
For the reasons explained in this order, we remand this case to the superior
court for further consideration.
Factual and procedural background
Pisano is charged with murdering three men. According to the complaint
dated September 12, 2017, the Anchorage police received a 911 report that “Tony” had

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just shot “Steve” at The Bullion Brothers, a gold and silver shop in Spenard. Police
responded and found three people dead of gunshot wounds: Steven Cook, an owner of
the shop, and Daniel McCreadie and Kenneth Hartman, tenants who lived in separate
apartments in the building. The 911 caller and a co-owner of the jewelry shop, Michael
Dupree, alleged that Pisano had started a fight with Cook before shooting him multiple
times, and that he (Dupree) had wrestled the gun from Pisano, run from the shop, and
called 911.
Shortly after the shooting, Pisano called a police sergeant and reported that
he provided security for a jewelry shop and that a fight between the two owners had
escalated into a “shootout.” The police contacted Pisano and transported him to the
police station, where Pisano alleged that Dupree shot Cook. Later, Pisano apparently
approached an officer and stated, “It was in self-defense.”
The police arrested Pisano and charged him with the shootings. At Pisano’s
first court appearance, the court set bail at a $500,000 cash appearance bond along with
other conditions of release, including a third-party custodian requirement. Pisano is
forty-four years old, and he has no prior convictions.
The first set of bail hearings occurred in October and November 2017
before Superior Court Judge Jack Smith. At those hearings, Pisano’s attorney proposed
the following release plan: the appointment of two third-party custodians (Pisano’s
mother as the primary 24-hour custodian, and his wife’s friend as a substitute, when
needed); electronic monitoring through Alaska Pretrial Services; house arrest with passes
for court, medical, and attorney appointments; and a reduction in bail to a $50,000 cash
bond.

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Both of the proposed third-party custodians testified. Pisano submitted
sixty-seven character reference letters to the court and presented four witnesses, each of
whom had served with Pisano at some point during his twenty-year service in the United
States Army. A representative from Alaska Pretrial Services testified that he had
searched Pisano’s home and ensured all weapons were removed.
Following the hearings, Judge Smith found that Pisano had failed to rebut
the statutory “no bail” presumption under former AS 12.30.011(d)(2)(A). Under that
statute, a person charged with certain enumerated offenses, including first-degree
murder, faces a “rebuttable presumption that no condition or combination of conditions
will reasonably assure the appearance of the person or the safety of the victim, other
persons, or the community.” (The current bail statute, which went into effect on January
1, 2018, does not contain this provision. See SLA 2016, ch. 36, §§ 59, 192. However,
the current bail statute only applies to offenses that were committed on or after January
1, 2018. See SLA 2016, ch. 36, §§ 185(o), 192.)
Judge Smith reasoned that bail had not been meaningfully set at Pisano’s
first court appearance because there had been no opportunity for the parties and the
victims to provide information to the court. Thus, the court started from the presumption
that Pisano was not entitled to bail and, after considering the evidence and the arguments
of the parties, imposed a “no bail” order.
In December 2017, Pisano submitted a second bail proposal. He requested
release under the same conditions he had previously proposed, but he asked that
monetary bail be set at a $50,000 cash performance bond plus a $25,000 cash or
corporate appearance bond.

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A second set of hearings was held in January 2018 before Superior Court
Judge Erin Marston. At those hearings, Pisano’s attorney argued that the court should
consider the new bail statute when setting bail. Pisano also presented evidence of his
finances and the finances of his parents.
The State argued that, together with the conditions proposed by Pisano, the
court should impose a $500,000 cash performance bond plus a $500,000 cash appearance
bond.
Judge Marston found that Pisano had rebutted the no bail presumption, and
he set the non-monetary bail conditions requested by Pisano. However, the court
rejected both Pisano’s and the prosecutor’s recommendations for monetary bail,
imposing instead a total monetary bail of $1,300,000 cash, comprised of a $400,000 cash
appearance bond and a $900,000 cash performance bond.
Pisano now appeals the monetary bail imposed by the court.
Why we conclude that the court must reconsider its decision
Pisano argues that the trial court’s imposition of a $1.3 million cash bail is
excessive and is the practical equivalent of a “no bail order,” given the financial means
of his family. Pisano maintains that the trial court failed to sufficiently explain why a
lesser monetary amount would not reasonably assure his appearance and the safety of the
community, given the structured and restrictive release plan otherwise approved.
Article I, section 11 of the Alaska Constitution entitles criminal defendants
to release on bail, and “[pretrial] release is heavily favored.”1 Although criminal
1Doe v. State, 487 P.2d 47, 51 (Alaska 1971) (quoting Bandy v. United States, 81 S.Ct.
197, 198 (1960)).

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defendants do not have an absolute right to monetary bail in an amount they can post,2
both the United States and Alaska Constitutions prohibit the imposition of “excessive”
bail.3 Excessive bail is that which goes beyond the amount actually necessary to fulfill
the purposes of bail — i.e., to reasonably assure the defendant’s appearance and the
safety of the community.4
The determination of appropriate bail conditions is in large measure a
discretionary function, and the trial court is in the best position to make this
determination. As a result, we typically review a trial court’s decision to impose
particular bail conditions for abuse of discretion.5 But this review presupposes that the
trial court has demonstrably considered the relevant factors and has provided a sufficient
explanation of why, after considering those factors, the trial court imposed the particular
condition or conditions being challenged.
In this respect, the imposition of bail conditions is analogous to the
imposition of a criminal sentence. When a court imposes a sentence, the court is
required to consider the sentencing factors set out in State v. Chaney and AS 12.55.005.6
The court does not need to ritualistically recite these sentencing factors, and appellate
2Gilbert v. State, 540 P.2d 485, 486 n.12 (Alaska 1975).
3United States Const. amend. VIII; Alaska Const. art. I, § 12.
4See Stack v. Boyle, 342 U.S. 1, 5 (1951); Doe, 487 P.2d at 51; see also former
AS 12.30.011(b) (court must set “least restrictive condition or conditions that will reasonably
assure the person’s appearance and protect . . . the community”).
5AS 12.30.030.
6State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).

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review of a sentence is governed by the deferential “clearly mistaken” standard.
Nevertheless, the trial court must sufficiently explain its sentencing decision to allow
meaningful appellate review and to help foster both acceptance of the sentence by the
defendant and public understanding of the court’s decision.7
In this case, we cannot tell precisely why the court chose the monetary
amounts it did, or how the court reached the conclusion that these monetary amounts
were the least amounts necessary to secure the twin goals of bail. In its written order, the
court discussed each component of the bail proposal, including the two monetary bail
components, separately from each other and from the other components of the bail
proposal. The trial court set a $400,000 cash appearance bond and a $900,000 cash
performance bond, and in each case, the court declared that these respective amounts
were the “minimum” necessary to meet the purposes of bail. We are unable to discern
why the court concluded that Pisano’s case necessitated these specific bail amounts,
particularly given that the total amount — $1,300,000 — significantly exceeded the
amount that the prosecutor believed was necessary.
There are several aspects of the court’s order that make it difficult to
evaluate the court’s ultimate conclusion. First, the court did not explain the purpose that
the large monetary amounts were designed to serve, given the other components of the
bail proposal. The question is not whether any one condition in the release plan will
guarantee Pisano’s appearance and the safety of the community; the question is whether
the conditions as a whole will reasonably assure these two goals.8
7See Houston v. State, 648 P.2d 1024, 1027 (Alaska App. 1982).
8Former AS 12.30.011(b) (2017).

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Here, the court has approved a comprehensive pretrial release plan
involving intensive supervision and restricted movement. If released, Pisano will be
under 24-hour house arrest with electronic monitoring as well as the constant supervision
of a third-party custodian. Pisano will only be allowed to leave the house to attend court
and verified medical and legal appointments. He has also turned his passport over to
Alaska Pretrial Services and will be required to sign a waiver of extradition as part of his
agreement with the electronic monitoring company.
In its written order, the court expressed confidence that electronic
monitoring and the approved third-party custodians would “serve to the best of their
abilities,” but the court noted that “neither system is flawless.” This echoed earlier
remarks in which the court recognized the strength of the third-party custodians but
expressed concern that neither a third-party custodian nor electronic monitoring will
improve the response time by the police if a violation is reported. But it is not clear how
a huge monetary bail will address these problems.
Second, the record shows that in setting monetary bail, the court had in
mind a “typical” amount of bail generally set by judicial officers in murder cases. The
court appeared to calibrate its choice of monetary bail by reference to this typical
amount. But the court did not specifically identify what this typical amount was; it
appears to have been based on a chart provided by the prosecutor showing the bail
imposed in a number of past murder cases.
When a court sets bail, it cannot defer to a “typical” amount of bail for a
particular charge. Rather, the court must engage in a case-specific analysis of the

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particular case and the particular defendant.9 This flows directly from the requirement
that the court impose the “least restrictive condition or conditions that will reasonably
assure the person’s appearance and protect . . . the community.”10 Thus, rather than
deferring to some “typical” amount, the court was obliged to consider the least restrictive
bail conditions necessary to reasonably assure Pisano’s appearance and the protection
of the community — and specifically, to explain why any monetary amount greater than
what Pisano could afford was required.11
(We note too that the prosecutor acknowledged that the bail amounts in his
chart might reflect only the bail initially set in those cases — and not the subsequently
amended amount set by the court after a bail hearing. And we note that Pisano asserted
that, in many of those past cases, the defendants had prior convictions.)
Third, while the trial court acknowledged that it was required to consider
Pisano’s ability to pay before setting bail, we cannot tell from the record how the court
meaningfully integrated this consideration into its analysis.12 The court heard testimony
from Pisano’s family members about their financial resources, but did not make any
9See Stack, 342 U.S. at 5 (noting that the standards governing the fixing of bail must
“be applied in each case to each defendant”).
10Former AS 12.30.011(b) (2017).
11Cf. United States v. Mantecon-Zayas, 949 F.2d 548, 551 (1st Cir. 1991) (when a
court enters an order for pretrial release containing a financial condition that the defendant
in good faith cannot fulfill, the court must explain why that particular requirement is an
indispensable component of the conditions for release).
12See former AS 12.30.011(c) (2017) (establishing factors the court must consider,
including the defendant’s ability to pay); Reeves v. State, 411 P.2d 212, 214-15 (Alaska
1966).

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specific findings about the level of bail that the family could afford. It is therefore
difficult to evaluate how far outside of Pisano’s means the bail really is.
When discussing Pisano’s appearance bond, the court did state that it had
considered “the showing of limited financial resources made by Mr. Pisano’s family.”
At the same time, however, the court reasoned that the $400,000 cash appearance bond
would motivate Pisano’s mother to “strictly follow her duties as a third-party custodian,”
since she — and possibly, other extended family members — would likely assist Pisano
in posting the bail. Without a further explanation, these two statements are not easily
reconciled. If Pisano’s family had “limited financial resources,” then it is not clear how
the family could afford to secure Pisano’s release — and if the family could not post the
bail, the court risk of losing the money would be completely moot.13
For all these reasons, we simply cannot discern from the current record why
the trial court believed that monetary bail in amounts totaling $1,300,000 was the least
restrictive monetary bail necessary in light of the otherwise structured and restrictive
supervision plan in place, or whether the bail amounts imposed by the court reflect a
thorough consideration of the legal principles we have outlined above. A remand is
therefore necessary.
We make one additional observation in connection with the court’s
imposition of monetary bail. Pisano argues that the court erred in failing to apply the
new bail statute, which took effect on January 1, 2018. We disagree. As we noted
13See Camara v. State, 916 So. 2d 946, 947 (Fla. App. 2005) (recognizing that
“excessive bond, depending on the financial resources of the defendant, is tantamount to no
bond at all” and requiring evidence of the defendant’s financial resources to be heard and
considered before bond is set).

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earlier, the Legislature expressly provided that the new bail statute applies only to
offenses occurring on or after January 1, 2018. See SLA 2016, ch. 36, §§ 59, 185(o),
192. Pisano is charged with committing offenses in September 2017.
However, we agree generally with Pisano that, in setting bail, the court can
take into account any data and research on the efficacy of monetary bail relative to other
forms of supervision, as well as the concerns about a money-based bail system that gave
rise to the recent legislative repeal and re-enactment of AS 12.30.011.14 Regardless of
whether the new bail statute governs Pisano’s case, it is appropriate for a court to
consider the latest expression of legislative intent, to the extent that incorporation of that
intent is possible.15
Accordingly, we direct the trial court to reconsider the monetary component
of Pisano’s bail using the principles set forth here.
Conclusion
We REMAND this case to the trial court for further proceedings consistent
with this order. Given this resolution, we need not address Pisano’s additional claims.
We do not retain jurisdiction.
14See generally Alaska Criminal Justice Comm’n, Justice Reinvestment Report, at 8
(Dec. 2015).
15Cf. Whittlesey v. State, 626 P.2d 1066, 1068 (Alaska 1980) (holding that new
sentencing provisions, which did not strictly control, were nonetheless “the most recent
expressions of legislative policy” and thus, “useful and relevant” to determining an
appropriate sentence); Sundberg v. State, 636 P.2d 619, 622 (Alaska App. 1981) (remanding
for reconsideration of sentence in light of changes to criminal code, which represented the
most recent expression of legislative intent).

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Entered at the direction of the Court.
Clerk of the Appellate Courts
/s/ Ryan Montgomery-Sythe
Ryan Montgomery-Sythe, Deputy Clerk
cc: Judge Marston
Court of Appeals Judges
Trial Court Clerk
Distribution:
Kevin T Fitzgerald
Ingaldson & Fitzgerald PC
813 W 3rd Ave
Anchorage AK 99501
Donald E. Soderstrom
Office of Criminal Appeals
1031 W. 4th Ave, Suite 200
Anchorage AK 99501